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Out of status spouse.

San Jose, CA |

Hi, I'm an American citizen and my spouse and I got married on September 4, 2013. We are filing the I-130 and I-485 together. Will my spouse be denied adjustment of status since her visa expired two days ago? From the way things look, we might be able to complete compiling all the documents and mailing them by the 30th of September.

Attorney Answers 8


  1. Spouses of U.S. citizens shouldn't have a problem with unlawful presence if they fall out of status before applying for I-130/I-485.


  2. As she is going to be adjusting her status on the basis of marriage to a U.S. citizen, being out of status -- assuming no other issues -- is not going to bar her from eligibility. Have an attorney review your case to spot any PCI or other possible issues. The article below may be useful.

    Kindly note that this posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Remember, this site is akin to an internet blog. Do not rely on information here to make important decisions in your life. Make an appointment to meet with a licensed attorney in his or her office (or via Skype or phone) to obtain competent personal and professional guidance.


  3. Your wife can adjust even if she is out if status.


  4. Seek a consultation with excellent immigration counsel. There may be other issues. Retain an attorney to assist with all filings before USCIS. Seek help now

    No attorney-client relationship is created or implied by this communication. To contact this attorney see his profile; attorney number: 281-733-2875.


  5. As long as your spouse entered the USA lawfully it will not matter that their visa has expired at the time of filing.


  6. Congratulations on your marriage. If your wife entered the USA lawfully, she should be permitted to adjust, even if she falls out of status. Talk to an immigration attorney to go over your specific situation. Best wishes.

    (626) 771-1078 Los Angeles Attorney Theodore Huang, Esq. This is not legal advice. No attorney/client relationship is established. Attorney Huang is licensed in MD; practice limited to federal law.


  7. No- as long as she did not violate any other terms of her visa.


  8. This is not a problem in most USCIS offices. You may want to consult with an experienced immigration attorney in San Jose. Please see

    (213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.

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